The background

The miscarriage of justice...

So much has been written about David Bain, most readers in New Zealand will already be familiar with his story. Over the years there have been hundreds of media articles about the case and most of these are still available online. The following is a brief summary. It is not intended to be a comprehensive account of David Bain’s entire legal history and background.

David Bain before he was arrested

It all began…

On 20 June 1994, when 22 year old David Bain was a music student and aspiring opera singer living with his family in Dunedin. That morning he went out early to deliver newspapers as part of his daily paper run. When he got home, he found all five members of his family had been shot: his father Robin, his mother Margaret, his two sisters Arawa (age 19) and Laniet (age 18), and his brother Stephen (age 14).

Two days after the killings, the police were still considering whether it was a murder-suicide committed by the father and in no hurry to prosecute anyone. The officer in charge said:

“There’s a lot of work to be done and as we all know, if you rush work, you muck it up. So it’s better to proceed at a reasonable pace.”

Two days later, the police ignored that simple piece of wisdom. They made a rush to judgement and charged David, who was the oldest son with five counts of murder. When asked to consider David’s compensation claim for wrongful conviction 15 years later, Canadian judge Ian Binnie concluded the police did rush the investigation and mucked it up so badly, they made what he called ‘egregious errors‘.

One of those errors was that two weeks after the killings, once David was in prison, the police allowed the family home to be burnt down by the New Zealand Fire Service; valuable evidence was destroyed in the fire including footprints made by the bloodied socks of the killer.

Some years prior to this, the family had lived in Papua New Guinea where David’s father worked as a missionary teacher. While there, Margaret became interested in new-age spiritualism. According to journalist Martin Van Beynen, by the time they returned to New Zealand, Margaret believed in the channelling of spirits and thought the family needed to be protected from satanic influences. Margaret referred to these influences as Belial which she detected everywhere, “especially in her husband.”

“The Bain family was somewhat dysfunctional. The house was a shambles. Keeping the house clean was not a family priority. One of the Police officers described the place as “unkempt and a pigsty. Robin’s marriage to Margaret had effectively broken down. She had called him a son of Belial – one of the FourCrown Princes of Hell. He did not sleep in the house with his wife and children. When staying at 65 Every Street, he was banished to sleep outside the house in a caravan” .

Martin Van Beynen said in one of his his reports that Margaret and Robin were constantly bickering and fighting. He said they had such an acrimonious relationship, that:

“Margaret told an old acquaintance shortly before the murders that she would shoot Robin if she could… It’s hard to escape the impression that Margaret’s beliefs had a profound influence in the annihilation of the family.”

What the jury wasn’t told

Robin Bain – the only other person who could have done the killings

The breakdown of the marriage was only one of the factors contributing to Robin Bain’s state of mind. Before the trial Dean Cottle, a friend of David’s sister Laniet, provided testimony which was potentially relevant to Robin’s state of mind at the time. He told police that Robin had been in an incestuous relationship with Laniet which began when the family lived in Papua New Guinea – and that he continued abusing his daughter when they returned to New Zealand.

After the trial, Cottle said that before she died, Laniet told him she was ‘going to put a stop to everything’ by telling the rest of the family what had been going on between her and her father. However, the presiding judge regarded Cottle as an unreliable witness and his testimony was not presented at the trial. (See Cottle’s statement here – which was read out by the judge at the second trial in 2009.)

Listen to a TV3 phone interview with David in which he proclaims his innocence and speaks about the loss of his family – recorded on 4 November 1995 from Paparua prison, soon after David was convicted. Hear his lawyer, Michael Guest, tell the (first) Court of Appeal that the evidence which was ruled inadmissible should have been put before the jury (1:35).

Laniet Bain who told numerous witnesses she was sexually molested by her father

As time went by, more allegations came to light. In affidavits presented to the Court of Appeal in 2003, other people also reported that Laniet had told them about a sexual relationship with her father; she told at least one person her father had raped her and told others she had had an abortion. [Privy Council decision, paras 46-49]

Fellow teachers subsequently described Robin at the time of the killings as‘deeply depressed, to the point of impairing his ability to do his job of teaching children’.Cyril Wilden, a former teacher and registered psychologist visited the Taieri School, and noted that ‘Robin appeared to be increasingly disorganised and struggling to cope.’ There were piles of unopened mail on his desk and his classroom was ‘dishevelled, disorganised and untidy’.

Kevin Mackenzie, President of the Taieri Principals’ Association at the time, found it ‘unbelievable’ that Robin published brutal and sadistic stories written by his pupils in the school newsletter, one of them involving the serial murder of members of a family. He regarded the publication of these stories as “the clearest possible evidence that Robin Bain had lost touch with reality due to his mental state”. [Privy Council decision, paras 41-43].

None of this information was available to the jury in 1995. The police failed to follow up on the allegations of incest and David was found guilty and sentenced to life in prison – with a non-parole period of 16 years.

Watch a TVOne News report of the retrial in 2009 in which it was alleged Robin Bain may have sexually abused both his daughters; a psychiatrist who counselled David for ten years says he developed PTSD after the death of his family; and a police officer threw a witness’ statement about Robin Bain’s depression in the rubbish bin (2:07).

The support of Joe Karam

Joe Karam wrote four books about David Bain’s case

Joe Karam, a former All Black, then spearheaded a thirteen year campaign to have David’s convictions overturned. Karam examined every aspect of the case in detail and wrote four books about it. He also supported David in his numerous legal appeals.

Despite three attempts, David was unable to persuade the Court of Appeal in New Zealand that he might be innocent. So in 2007, Karam helped David take his case to the Privy Council in London where his legal team laid out nine different arguments as to why the convictions should be quashed. One of those arguments was that, prior to the killings, Robin Bain had been so depressed that ‘he may have lost touch with reality’.

Privy Council decision 2007

In May 2007, away from the media hype surrounding the case in New Zealand, the Privy Council took a fresh look. David’s defence team presented nine key points for the Council to consider. In regard to Robin Bain’s state of mind at the time, the Council decided:

“The question must arise whether (Mr Cottle’s) evidence would have been rejected (by the original trial judge) had it been known that three other independent witnesses gave evidence to broadly similar effect… If the jury found Robin to be already in a state of deep depression and now, a school principal and ex-missionary, facing the public revelation of very serious sex offences against his teenage daughter, they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence.”[Para 106]

(The possibility that Laniet was about to expose her father for sexually abusing her is described in the literature on familicide as a ‘triggering event’ because it potentially exposes the perpetrator to shame and public humiliation – not to mention arrest and imprisonment. See here for research on familicide as it applies to the Bain case.)

“In the opinion of the board, the fresh evidence adduced in relation to the nine points … taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case. It is the effect of all the fresh evidence taken together, not the evidence on any single point, which compels that conclusion.” [Para 104]

The Council quashed David’s convictions and said he should be retried. A few days after his conviction was overturned, David was released on bail – and stayed with Joe Karam.

The retrial 2009

Judge Binnie noted (paras 80- 82) that at the retrial, the jury heard from 130 witnesses, and that it was essentially a debate among experts over the significance (or the lack of it) of the findings and mistakes made by the Police in their investigation in 1994. Binnie wrote:

“It is fair to say that the case presented to the 2009 jury, despite being based largely on the 1994 Police investigation, was a totally different case than had been presented to the 1995 jury. The 2009 jury did not reach a different conclusion on the same record; it was presented with a very different and far more extensive factual picture, and the testimony of numerous additional experts of impressive credentials, than had been made available to the jury in 1995.”

The trial lasted 13 weeks. After deliberations that took less than a day, David was found not guilty on all five counts.

The retrial captured the public imagination like no other case in New Zealand’s history. A mass of cameras, plus 50 or more journalists and support staff were at the High Court to hear the jury’s decision. Each verdict of not guilty for the five murders was greeted with cheers and applause by those in court.

In the end, the case put forward by Joe Karam and the defence team for 15 years could no longer be denied – that in a state of depression, about to have his incestuous relationship exposed, Robin killed the rest of the family while David was out on his paper run – and then committed suicide. He even left a note for David on the family computer that read: “Sorry. You were the only one that deserved to stay.”